s he needs to win. that is not going to happen. more on that in a moment. both candidate were on the stump in virginia. another swing state today. a rally in virginia beach the president called on americans to come together and re-claim common values of hard work, personal responsibility and look after neighbors. >> obama: if we re-claim those values now, if we rally around a new economic patriotism together, we can rebuild this economy together. we will grow the middle class together. we will move forward together. >> eliot: not surprisingly, the same themes play a prominent role in a two-minute long ad the obama campaign is playing in seven swing states including ohio and virginia. >> obama: it's time for a new economic patriotism. rooted in the belief that growing our economy begins with a strong, thriving middle class. compare my plan to governor romney's and decide for yourself.

>> eliot: to help voters make the decision, the obama campaign also put out another ad today putting pictures of real people over mitt romney's notorious comments to wealthy donors about americans who don't pay income tax. >> 47% of the people -- who are dependent on government. who believe they're victims. who believe government has responsibility to care for them. who believe they're entitled to healthcare and food, to housing, to you name it. >> eliot: while mitt romney and his super pac allies have raised more money than the president and his allies, the margin is surprisingly small. according to the "washington post," the president has raised $779 million just $5 million less than the republicans. the democrats have spent more, $612 million. there is help on the way for the campaign. democratic super pacs have started to bring in large donations. politico is also reporting today that financier joe is giving a

million dollars to priorities u.s.a. action, a super pac supporting the obama campaign. federal lecture laws give the white house an advantage in the spending wars. "the washington post" reports while the president's campaign controls most of his funds, much of romney's cash is actually being held by a g.o.p. committees and other interest groups because candidates enjoyed discounted rates for tv ads the post says, the white house was paying just $125 to run one ad in ohio compared to $900 charged to a pro romney super pac for the same slot. romney insists he's going to win in november and made his pitch to a crowd in springfield virginia today. >> romney: food prices are up, electricity prices are up. these are tough times for the american people. and the answer to help the american people is to get small business growing again. hiring people again raising wages again. i know how to do it. >> eliot: if you believe that mother jones which put out the now infamous romney donors video

wants you to see this video making a pitch for bain capital in 1985. >> bain capital is an investment partnership which was formed to invest in start-up companies and on-going companies then to take an active hand in managing them and hopefully five to eight years later to harvest them at a significant profit. >> eliot: learning to harvest profits from companies is not the same as knowing how to create jobs and if that's not enough to motivate democrats to go out and work for the president, the jewish council for research and education has released a four-minute ad featuring actor samuel l. jackson that might do the trick. >> schools the environment unions, fair pay. we're all on our own if romney has his way. he's against safety nets. if you fall, tough luck! so i strongly suggest that you wake the [ bleep ] up. >> eliot: not sure what the beep was. for more on the presidential

campaign, let's go to alina and mother jones staff reporter andy crowell. alina, let's start with you. am i overstating the case when i say ohio is done? a 10-point margin at this point i've gone through a couple of campaigns. i don't see how you move 10%. tell me i'm wrong. make it fun. >> hi, thanks, eliot. well, i'm very much on the money side of things and on the kind of monitoring of donation side of things. i can tell you that there are plenty of ad spaces left in ohio. from the standpoint of reaching the voters in ohio, romney and his team still have an opportunity actually today i spoke to a number of station managers over in cleveland and columbus and they say that if you've got money and if you want to run your ads we still have space left for you. so he still can put a lot of his -- lots of cash that you were just talking about to work there and hopefully get the people to believe his message

and to actually go out and vote. >> eliot: here's the problem. you can buy the space. you gotta have something to say. i've been watching this guy mumble and stumble and trip over himself now for going on a year. he doesn't have a message. andy, tell me i'm wrong. what is he going to say to folks in ohio now or over the next 40 some odd days that are left that is going to somehow change their minds? >> well, he's going to hit the president on china which he's done before and say the president is allowing china to steal american jobs and to undercut manufacturing here. he's going to say the president has not gotten us out of an economic calamity eight years in the making in his four years in office and he's going to say to the president as we heard earlier, gas prices have gone up. the economy is not moving as fast even though as we learn today, its net job growth under president obama's first term in office, you'll hear all kinds of stuff that romney has already said. what you're not going to hear is anything -- unless they pull a rabbit out of their hat you

won't hear anything that diffuses these 47% comments calling 47% of americans victims, people who rely on the government, can't take care of themselves. you're not going to hear ads that diffuse the image of romney as a private equity man who is about harvesting companies and who is about putting profits over people. that is the message that has really resonated in ohio with the obama super pac and the obama campaign itself and really we have not seen anything in this entire campaign to suggest that romney has a good, solid answer to that. >> i have to add though that a couple of days ago in the recent weeks, the romney campaign has taken a new tack. as you were mentioning, the obama campaign has put out this kind of direct talk to the voter type of action d that basically has the president talking to those folks who would presumably turn out to vote for him. so did the romney campaign. they did come out with a long ad where it is literally mitt romney sitting in front of the camera talk directly to the

voters. yes, repeating a lot of the messages that he's said on the stump but doing it personally, i suppose in a way to try to appeal to the folks on a much more personal level to try to draw that personality to add the personality understanding that people often say that they don't have about mitt romney and they've pooled in all of the swing states, including ohio, they've pulled all of the ads that were content ads so the message on healthcare and several ads on coal where they were arguing that obama's policies have really damaged the coal industry and instead in all of the swing states this week, all voters will see from the romney campaign is that personal ad where it is romney talking to them trying to talk to them why he's the right guy on november 6th. >> eliot: alina, that makes the point that the fundamental image of romney has metastasized. it is a negative ad based on him

having been a private equity guy who did not invest in humanity. he invested in the balance sheet that negative perception is what they're battling as opposed to giving us specifics about an economic plan. in ohio, he has a republican governor saying things are getting better. governor kasich was saying my economy is getting better because kasich wants to promote himself. he doesn't care so much about mitt romney. the key to this is manufacturing, the auto industry, the fact that the president bailed out the auto industry. mitt romney was against it. andy tell me where does that leave mitt romney to thread the neatel in -- needle in ohio to pick up the necessary electoral votes. >> alina makes a great point in seeing the shift from the issues to ads that focus just on romney as a person. the problem is that you know, and frank luntz the g.o.p. messaging guru, folks who brought us, you know, government -- that obama care is a government takeover, you know,

frank luntz said during the republican convention, if you are still trying to personalize your candidate you're still trying to get voters to believe that your candidate is a good human being, at the time of the convention, you've got a problem. and yet we're seeing it this week as alina points out. the campaign is putting a did, s out there they're trying to humanize mitt romney. if you are 40 days away from the election and you're still humanizing your candidate you've got a problem. that's especially relevant in a state like ohio, a lot of middle class, working class voters, a state like virginia, a lot of white, working class voters. they've got a problem on their hands here. >> eliot: alina, you said and you've been following the money in this campaign. huge gobs of money being spent. i'm going to suggest something that's a little counterintuitive. i don't think the money matters as much as we think it does. with all of the money the republicans have spent, they were unable to shake the 47% video or the attack about mitt romney and his taxes or the imagery of bain capital. all of the money in the world

can't change certain objective realities that the public sees. am i wrong about this? are people going to say maybe money isn't so outcome determinative. >> we do have examples, throwing a bunch of several million dollars into massive ad buys does lead to outcomes to remember newt gingrich in south carolina but i think in the end there is sort of a point, tipping point where the amounts of money you spend on an ad campaign don't make up for say people not interested in coming to vote because they're disenchanted. they don't agree with anything or are unhappy generally. in the same way the ads don't make up for the time you could be spending, shaking hands and trying to humanize yourself. personally with them. so i think you -- the message comes first and then like you were saying earlier depends on what you have to say. you can be sitting on -- i don't

know, billions and billions of dollars but if that message doesn't resonate with people -- >> eliot: it won't matter. look, there is a declining marginal value to the last ad once they've seen it ten times. the 11th doesn't matter that much. the more important the job, such as president, the less important the ads are. when you're talking about jobs where people don't know the candidates don't, know what the job is about, the first ad matters because that's the only data point they'll have. when it comes to voting for the president, we know so much because of the media coverage that the money, at the end of the day becomes more important. andy debates it is, in my view, the last hail mary moment for mitt romney. if you were going to give him advice, what would you say going in that would permit him to change the direction of his sinking vessel? >> he has to address in some memorable way in some clear concise, memorable way you know these videos that have come out that are dogging him. and he's just gotta address head on you know, all of the images of him as being sort of a cold-hearted capitalist and

someone who cannot relate to the coal miner in southeastern ohio or you know, the guy who works as a car mechanic in southern virginia. the 47% videos, the revelations about bain capital his tax returns, you know, using special tax vehicles as bloomberg reported to say $55 million in taxes. these are things dogging him contributing to this issue of this image of him as sort of a 1 percenter and he has to find a way to answer to that. i'm sure president obama will be bringing them up in the debates bringing up the issues and romney will have the chance to. the question is does he have something good and meaningful to say in response to them? >> eliot: the answer is no, he can't, he won't. game is over. reuters campaign finance reporter alina and mother jones staff reporter andy kroll thanks for coming on the program tonight. >> thank you. >> eliot: even members of the tea party are trying to get some distance from the tea party. that's ahead.

by american express. welcome to the possibilities of membership. welcome in. american express.

>> eliot: along with news that president obama is a net job creator, there are more jobs in the economy than when he took office, there is this interesting fact. he's presided over a turnaround in the creation of manufacturing jobs and that's our number of the day. more than 500,000 that's how many jobs we've added to the manufacturing sector since january of 2010. he all remember manufacturers the only ones who actually make stuff like cars in detroit machinery in alabama and electronics in maryland. but ten years ago we seem to write off this entire sector. it went into freefall after january 2001 and shedd four and a half million jobs by the end of the bush administration in january of 2009. but for more than two years now it is steadily, quietly gone up

to the tune of half a million new jobs. it goes to prove that we can save the manufacturing sector and we should, making things is better than pushing paper back and forth. so to remanufacture the political phrase of the moment, we really can build that. (vo) she gets the comedians laughing and the thinkers thinking. >>ok, so there's wiggle room in the ten commandments, that's what you're saying. (vo) she's joy behar. >>current will let me say if you have an opinion, you better back it up. >>eliot spitzer takes on politics. >>science and republicans do not mix. >>now it's your turn at the only online forum with a direct line to eliot spitzer. >>join the debate now. >> eliot: as president obama opens up a significant lead over mitt romney, democratic senators are being pulled along with him

especially in races featuring far right tea party republicans. most dplairing example where democrat joe donnelly has pulled ahead of richard mourdock. republicans have held the seat since 1977. it was-mile-per-hour -- mourdock who won by claiming the tea party mantle and attacking louver as a republican who would compromise but now that he's fallen behind his democratic opponent,-mile-per-hour dock is trying to step away from the tea party and court the moderate vote. let's bring in politico's national political reporter, david catanese. >> good to be with you eliot. >> eliot: it is a great interest. the senate being hugely important. the white house is something we have -- we know where that's going to go. let's talk indiana. what do you make of this race and is it really winnable for the democrats? >> it's definitely in play and this is not where republicans

wanted to be 40 some days out in a very red state like indiana. they lose indiana they basically do not have a shot at winning the senate. i think both sides agree on that. i will say about mourdock, i was out there for his run-up to the primary where he defeated lugar. he won't say he was a member of the tea party. he's a state treasurer. he certainly took their support and he got some harsh rhetoric. the compromise rhetoric. his supporters were saying all along, i'm not a tea party candidate. rhetoric way back months ago but certainly now he's definitely striking a more moderate tone because he's looking at poll numbers so he's got got the lieutenant-governor saying he's going to go to washington and compromise whereas four months ago he was saying compromise means democrats come into my position. >> eliot: he changed in the tonality of the conversation he's participating in. what you're saying, he's not

chris -- the famous i'm not a witch candidate who was so far to the right that it gave up what had been a republican safe seat to a democratic candidate. >> he's not. he's got a political antenna. he has won statewide before. he's not saying outlandish things every few days like they were in many cases. but look he's in trouble because he never made amends with lugar and a lot of the lugar voters are republicans maybe in the middle. they're moderates they're not hard right. they don't like his uncompromising rhetoric. they also don't like the way lugar was defeated basically. mourdock smashed him by 20 points unceremoniously. there's still some bitterness on the part of the lugar fan club. >> eliot: has lugar endorsed him in anything more than a perfunctory way? >> really, he didn't. he did one meeting on capitol hill, introduced him to members of the senate caucus but just a few weeks ago he said he would

not be on the trail campaigning and that sends a signal to people because lugar is still a historic figure in the hoosier state. >> eliot: we used to have hostage endorsement where is you would read the script without tonality like somebody is pointing a gun to your head. the public understood this was something you felt compelled to do but didn't have your heart in. senator lugar isn't behind him. that could hurt. we'll come pack to the tea party issue in a moment. another couple of senate seats that will determine who is the majority leader in the senate, whether it will be mitch mcconnell or harry reid come next january. let's start in nevada. who is going to win the senate race there which is, you know, again, the republicans thought they had easily. >> tough call here. shelley shelley berkley has been hobbled by an ethics investigation. she stayed in the game. polls are very tight there. the democrats do have a registration advantage. they've got the harry reid machine that was put in place in 2010 and pulled him over the line.

many people thought harry reid was done. they debate later tonight. that will be very interesting to see the contrast between dean heller who is a milquetoast republican. he doesn't say a lot of incendiary things. he will be tough on berkeley saying she's the most corrupt person he's ever met. berkeley is hitting him on the issue of medicare because he voted for the ryan budget twice. polls are very, very close there. i would give a slight edge to heller. >> eliot: what does it mean that the voters in nevada don't seem to care that she and berkeley is the subject of an ethics investigation? is this par for the course in washington? something about nevada? that is an interesting phenomenon. >> it's vegas, baby, right? it's interesting. i don't know how much information there is on this. remember we pay attention to this all summer, you know. this dropped in july. i don't know how many voters have a lot of information about the details of the ethics investigation. i do think a lot of voters put their hands up and say look,

this is partisan politics. when there is an investigation open anymore it is seen through the lens of partisanship. this guy is doing it because they're in another party. that's part of it. people throwing their hands up and not believing even in investigation. >> eliot: that's right. the fact of an investigation is now degraded is an important political point. let's go to montana. this is a red state. you have an incumbent democrat senator with tester. who will win this one? everyone says this is the coin balancing on the edge. >> a few points all year. the thing -- they're both basically statewide officials because montana only has one congressman. he's been on the ballot multiple times. two entrenched incumbents going toe to toe. completely saturated with pretty tough ads on both sides. watch the presidential race here. if obama is doing real well and like you think is going to blow this thing out of the water and even does better than expected in montana, he can help tester.

but if romney gets a big edge or even if romney doesn't win the presidency but outperforms in montana, that could sweep away tester and allow reberg to send through. there is not a lot of undecideds left in that race. it is getting the partisan voters out. >> eliot: tester has won away from the president. you wonder whether that is going to help tester or not. maybe he's backed himself into a corner a little unnecessarily by running away from the president quite so much. >> that's true. rehberg has tied tester to the president even though tester tried to run from him. i still think the top of the ticket hurts by party and people getting out there. i don't think liberals that are going to go in and vote for obama are not going to vote for tester even though he's created some of the distance. >> eliot: exactly right. number of house republican tea party leads who are under assault. i don't know if they're going to lose. everybody from steve king to michele bachmann to alan west, are they really feeling the heat? are they seeing the ground shift

under them so they're beginning to think the tea party wave has crested? >> well, look, democrats want to use these figures bachmann, steve king, alan west, because they're huge targets and they raise a ton of money. they say the most incendiary things and they get democrats fired up. now, joe walsh is in trouble. he's got a tough district in northern chicago. and tammy duckworth is a pretty good candidate with a pretty good personal story. i think republicans sort of have a wash that one away. but michele bachmann has raised and spent $16 million during this campaign. more than any house member than the speaker boehner. she's had a huge fund-raising advantage. same thing with alan west down in florida. $10 million. are they targets, good for fund-raising for democrats? but when it comes down to it in the house races when you're raising that kind of money presidential campaign money. obviously she was a candidate. i still think she's going to be

tough to beat. >> eliot: democratic party should love the tea party. it has destroyed the republican party and has given the white house back to president obama. that's a conversation for another day. national political reporter for politico, david catanese. as always, thanks for your great analysis. >> sure. thanks a lot. >> eliot: for the nfl replacement refs, in memorial. viewfinder is coming up next.

>> eliot: coming up, reading between the lines of the united states constitution. but first late last night the nfl and the nfl referees association finally reached a settlement. so let's take a moment to look back fondly on the era of the nfl replacement ref. when it doesn't fit anywhere else we put it in the viewfinder. >> after four months of being off the field the referee's union has reached a tentative

deal with the nfl -- with the nfl body. >> the replacement refs are proving to be a disaster. >> two families both alike in dignity. one, the referee, the other, the league of national football is locked in dispute ages old. [ speaking foreign language ] >> famously bad call on monday night football that people are still talking about. [ speaking foreign language ] >> we need to get rid of these temporary refs just like we need to replace the obama

administration. >> this guy knows how to pivot. we went from refs to president obama. >> that's what we were saying this morning. look, that was an interception. anybody who watches that will know. [ whistle ] >> green bay's ball. >> interception. you are smarter than a replacement ref! >> i saw both sides had their hand on the ball as far as i can tell. >> you are not smarter than a replacement ref. i'm sorry. [ buzzer ] >> one day you're working at footlocker and the other you're in the nfl. >> clap if you think it was holding. all right. not bad. okay. now clap if you don't think it was holding. all right. somebody please tell me what holding is. >> you know where they put their whistle. do they know where they put their outfits. >> it's toward to be a football ref when you don't know the football rules. >> number 10. every call you make begins with uh...

>> dumb question but what is this? >> number seven can't believe how many player's autographs you're getting. >> holding on the offense number 60 -- 60 um -- all i know is the big black guy. >> you've made six tackles and an interception. [ laughter ] and the number one sign you're a bad referee you're hated everywhere but seattle. [ speaking foreign language ] >> i do not know any of these official gestures of a real referee. >> these replacement refs are great for business! i just hope they're demanding to get paid what they're worth. i mean if the owners don't give it to them, they should really form a union. >> eliot: it's sad. we are going to miss them. is the presumption of innocence really in the constitution? you sure about that? more "viewpoint" coming up ahead.

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admitted that that look, we were able to keep a lot of the folks because of the stimulus. >> bill: absolutely. again, do you great work, judd. thank you. all of your colleagues at think progress. we'll see you again next septic disasters are disgusting and costly, but avoidable. the rid-x septic subscriber program helps prevent backups by sending you monthly doses right to your door so you will never forget to maintain your system. sign up at rid-x.com. ♪ ♪ [ male announcer ] the exceedingly nimble ridiculously agile tight turning, fun to drive 2013 smart. ♪ ♪

>> eliot: we have constitutional text for that or do we? the most fundamental freedoms we envoy, the right to privacy must be guaranteed in the constitution right? wrong. akhil reed amar explains in his new book "america's unwritten constitution" that this is why looking beyond the text to the context of what amar calls our unwritten constitution is so crucial. akhil joins me now. 225 years after our constitution was written to explain how to understand and interpret this mysterious document. thanks for joining us. >> thanks for having me. >> eliot: you are the next generation of brilliant constitutional scholars according to all of my friends who follow this stuff. i no longer put myself in that category. give us the one minute version. you've got originalists who say you've gotta read the text and then you've got those who believe in a living document. it breathes and is organic. you have articulated something a little bit different.

>> right. i say can't we all just get along? we -- to some deep level liberals and conservatives are all textualists. we pay attention to what the words say and we're all living constitutionalists. left, right and center, for example, every justice believes that a criminal defendant has the right to take the stand in his own defense. but that's not in the constitution and in fact, it wasn't even a practice at the founding in no state court in no federal court could a criminal defendant take the stand in his own defense. the constitution, as you mentioned, doesn't say presumption of innocence. it doesn't say rule of law. limit of government, federalrallism, separation of powers, right to privacy. it has the bill of rights but it doesn't say it. even conservatives, they believe in federalism and separation of powers. these are unwritten concepts. >> eliot: trying to put boundaries on where one can impose upon this document and

one like you who believed it has evolved necessarily to reflect the values of our modern society, how do you impose limits upon how far you can go and the best argument i've ever heard for originalism is there is an amendment process. therefore if you want to find within the document something that was not there textually go out and amend it. what are the boundary lines? >> one thing is to take seriously that amendment process. for example we ammended the constitution to let women vote, the 19th amendment. that amendment doesn't say in so many words that women have a right to serve on juries. of course they do. it says a -- it doesn't say a woman has a right to be president. the original constitution says he him his. one thing we have to do is to try to see their spirit. five different amendments talk about a right to vote. it wasn't in the original constitution. we have to take the five amendments and connect the dots between them read them

generously and the ninth amendment says they're unenumerated rights. everything that's in the constitution, of course you protect that. but the ninth amendment says there are more. >> eliot: the ninth amendment is textually the easiest hook upon which to hang the argument there are routes that are not enumerated. on the other hand, you have people like justices thomas and ska leah who are rigid in their claim that they're originalists. the question i've always wanted to ask them is what did the drafters of the constitution think about originalism? did the drafters themselves say and leave us any interpretive devices to understand how they wanted us to interpret the document? >> so here's what's amazing. i actually celebrated the 225th anniversary of the constitution at the national archives last week with clarence thomas. he proclaimed -- he proclaimed that he believed in an unwritten

constitution. that he thought that there -- all of our rights -- >> eliot: he could talk. he never says anything from the bench. >> he was so gregarious and forward-leaning when he's assured that it's not a gotcha game, that people aren't out to stab him in the back. he was absolutely into it and into the idea that the declaration of independence talks about fundamental rights, unalienable rights. he's a believer in them. he even said that before the first amendment was adopted which talked about freedom of speech, there was broad freedom of speech in the actual practice of adopting the constitution. so he's willing to look beyond the text. >> eliot: that's interesting because in most of his writings, he's a rather originalist. i want to come back to a more recent decision. healthcare decision. the fulcrum of politics at least for the month preceding it. did chief justice roberts do

harm to our understanding of the commerce clause and take us back to an earlier era where he said no commerce clause -- >> i disagreed with that part of his ruling. i think that obama care law was easily a constitutional as an exercise of the power to regulate interstate commerce and as a tax and as a national defense measure, believe it or not. even for human rights. but here's one thing i will say on behalf of chief justice roberts. he didn't buy the argument all the way down the line. he upheld it. he joined liberals. it was not a total partisan 5-4 decision the way bush vs. gore was. i think he passed a test of principle. >> eliot: he's becoming a much fascinating, granularly interesting justice to watch. for many reasons he couldn't wipe the statute out. >> four justices were willing to do that on one sentence they didn't like. >> eliot: very quick. deal with justices breyer and

kagan saying come over with me to the medicaid limitation? >> i do think on the other issue, it was nice if that wasn't a partisan thing. whether that was implicit or explicit, what was nice is we didn't see another bush vs. gore. we had one institution in d.c. >> in 30 years we'll find out it was an explicit deal. has chief justice roberts put himself where kennedy is? >> he's a conservative. i don't expect that he will swing left lots in the future. in fact, he will be able to look us all in the eye and say in the most important case ever, i didn't vote party line. >> eliot: get out of jail free card. he's given host by a whole host of editorial pages who will say he did us one big one. akhil reed amar, thanks four your wisdom on these top issues.

>> thank you. >> eliot: will iran threaten us with nukes or is benjamin netanyahu threatening us with iran? that's coming up.

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>> eliot: there's nothing wrong with success but there's something very wrong with getting paid for failure. that's coming up next in my view. but at 10:00 p.m. eastern in "the war room," jennifer will discuss getting out the early vote with president of the national urban league mark morial and go inside the campaigns with editor and publisher of the nation, katrina later in "the war room" with jennifer granholm. but first, more "viewpoint" coming right up. presents coverage of the presidential debate. with unrivaled analysis and commentary. >> you're going to hear that used as a major talking point. (vo) the only network with real-time reaction straight from the campaigns and from viewers like you. >>now that's politically direct.

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